RAM KISHAN DASS Vs. BANARSI LAL SURI

JUDGEMENT

(1.) BY this application under Sections 151, 152 and 153 of the code of Civil Procedur, defendants Nos.3 and 4 pray that the preliminary decree dated 20.8.1981 passed by this Court be modified and their shares be redefined. The defendants/applicants plead that the preliminary decree was passed on the basis of a Will of Late Shri Mela Ram alleged to have been executed on 18.9.1978, but now it has come to their notice that deceased Shri Mela Ram had made an earlier registered Will dated 26.12.1974 according to which they are entitled to additional shares in the suit property.

(2.) THE application is opposed on behalf of defendants Nos.2 and 5, mainly on the ground that the preliminary decree dated. 20.8.1981 was passed on the basis of the Will dated 18.9.1978 without any objection or demur on behalf of the applicants and as such, at this belated stage, the applicants are estopped from denying the genuineness or the existence of the said Will. It is contended that even if the registered will dated 26.12.1974, which is being propounded by the applicants/defendants, is taken as executed, it stood superseded by the subsequent will dated 18.9.1978 which was accepted and admitted by the applicants/ defendants by relying upon the partnership deed Dated 29.12.1978 in which the will dated 18.9.1978 had been referred to. It is argued that the preliminary decree dated 20.8.1981 was passed with the consent of the parties and the applicants/defendants without even pleading in the application that the said will was forged or fabricated cannot call upon the Court to fall back upon an earlier Will dated 26.12.1974 and say that the preliminary decree should be modified.

(3.) I have heard learned counsel for the parties and gone through the records.